Last week’s decision of the Supreme Court of the United States in Ramos v Louisiana (“Ramos”) made headlines for ruling that the guarantee of trial by jury in the Sixth Amendment to the United States Constitution guaranteed the right to unanimous jury verdicts, even at the state level. The ruling invalidated Louisiana and Oregon laws that permitted convictions to be based on the votes of only ten jurors. In addition to being an important ruling in and of itself, the decision made headlines for noting the racist origins of Louisiana laws, which were clearly designed to allow a conviction over the objections of black jurors. In doing so, the Court overturned (or distinguished, depending on which of the divided judgments one views as binding) Apodaca v Oregon (“Apodaca”). The Court was divided 6-3 in the result – with a non-stereotypical split, to say the least: Justices Gorsuch, Ginsburg, Breyer, Sotomayor, Thomas, and Kavanaugh were in the majority. They had four sets of reasons between them, but a majority was nonetheless discernible, as all but Justice Thomas agreed with most of Justice Gorsuch’s opinion. Chief Justice Roberts and Justices Alito and Kagan dissented.
I am not a criminal procedure expert, much less an American criminal procedure expert, to say nothing of a Sixth Amendment or trial-by-jury scholar. So I make no comment on whether the decision was correct. I am similarly suspending judgment on Justice Alito’s dissent, wherein he criticized the majority for substituting accusations of racism against a law’s drafters for an analysis of constitutionality. Nor do I take any position on whether Justice Gorsuch was correct in holding that Apodaca (being a split 4-1-4 decision) was not binding or Justice Thomas’s view that it was distinguishable.
But I do wish to discuss Justice Kavanaugh’s concurrence in more depth, as he sought to spur discussion of circumstances in which stare decisis warrants – or cautions against – overturning precedent in the constitutional context. Justice Sotomayor sought to do this as well, albeit to a lesser extent. I do not necessarily endorse all of their views but I commend them for seeking to start an important discussion, where much case law – in both Canada and the United States – has been wanting. The principles underlying stare decisis transcend the borders of common law countries, and there is much to be learned from other jurisdictions’ approach to this issue.
Stare decisis allows parties, the public, and courts to view matters as “settled”. This promotes certainty, predictability, and stability. At the same time, no serious person suggests that stare decisis is a doctrine that ought to be adhered to without reflection: the law must evolve to new circumstances, and there are times when a precedent has proven itself to be deeply flawed. There are also times when the precedent cannot be applied with predictability, and adhering to it would undermine the purposes of stare decisis: the majority of the Supreme Court of Canada held this to be the case with respect to the law of judicial review in Canada in the December 2019 Vavilov decision.
This creates particular difficulty when courts overturn precedents in a conclusory manner and/or without significant justification for doing so. This leads to accusations, frequently understandable, that the court has engaged in results-based reasoning rather applying a previously known set of principles to justify the overturning of the precedent. But what should such principles be?
(I should note that this blog post addresses only horizontal stare decisis – i.e., that appellate courts ought not to overturn themselves. This is different than vertical stare decisis, which concerns lower courts’ inability to overturn higher courts in all but the most exceptional of circumstances, assuming the lower courts can even do that.)
Justice Kavanaugh’s Decision
In Ramos, Justice Kavanaugh sought to spur discussion of what factors should be considered in deciding whether to overturn a precedent. He also noted that precedent should be overturned less frequently with respect to the common law, and especially statutes, than with respect to the Constitution: the legislature has the power to amend a court’s decision on the common law or statutory interpretation, but cannot do so with respect to the Constitution.
He noted that many different considerations have been deemed relevant in deciding to overturn a constitutional precedent. These have included:
- The quality of the precedent’s reasoning;
- The precedent’s consistency and coherence with previous or subsequent decisions;
- Changed law since the prior decision;
- Changed facts since the prior decision;
- The workability of the precedent;
- The reliance interests of those who have relied on the precedent; and
- The age of the precedent.
He suggested synthesizing such considerations into three factors:
- Is the precedent not just wrong, but grievously wrong?
- Has the wrong decision caused real negative jurisprudential or real-world consequences?
- Would overturning the decision unduly upset reliance interests?
He ultimately posited that these criteria would prove more (emphasis on the comparative) reliable and predictable than a non-exhaustive list of criteria proposed in previous case law and commentary, while encompassing almost all values that should be weighed in a consideration of overturning precedent.
Justice Sotomayor’s Thoughts
Justice Sotomayor also wrote separately to note that the criminal procedure context is one where private economic reliance is particularly unlikely to be present, and thus the overturning of precedent should cause less anxiety. She also emphasized that the racist origins of the laws at play warranted particular consideration.
Concluding Commentary: A Good Start, But Let’s Be Realistic
First and foremost, I wish to commend Justices Sotomayor and Kavanaugh for seeking to build a list of factors that should be consciously considered by courts considering overturning precedent. The latter two factors that Justice Kavanaugh proposed also get to the purpose of stare decisis: promoting stability, coherence, predictability. It makes little sense to use stare decisis to uphold a precedent when upholding the precedent undermines the purposes of stare decisis.
Having said that, no one is suggesting that the criteria can be applied like a mechanical checklist. That would be totally impractical. Some uncertainty is inevitable. And Justice Kavanaugh admitted that there would continue to be debates on how wrong (or even if wrong) a decision is, to say nothing about how much people have relied upon it, or what negative real-world consequences it has caused. Without commenting on American cases, the Vavilov decision saw sharp division between the majority and minority on such questions about pre-Vavilov judicial review cases. So a list of criteria will not solve all disputes over whether to overturn precedent.
Even so, when judges do not grapple with a list of pre-established criteria regarding precedent before overturning it, this leads to accusations that they are ruling by judicial whim. This in turn leads to an understandable and problematic perception that we are living under the rule of judges rather than the rule of law. This causes problems for reputations of our courts, as Dwight Newman has noted in recent years. As such, demonstrating to the parties and the public that they have considered criteria relevant to overturning precedent is not only helpful to adhering to purposes of stare decisis, but also signals that a judge is not overturning precedent merely because he can.
I am not suggesting that Justice Kavanaugh’s list of considerations is perfect, and further guidance about how they are to be applied would be necessary in my view. I, for one, would place particular emphasis on reliance and a need to avoid chaos, as a practical trump card to caution against overturning precedent. I would also want some indicia to know why a precedent is “grievously” wrong as opposed to “merely” wrong. The distinction may prove illusory in practice, much like the abandoned distinction between “patent unreasonableness” and “reasonableness” in Canadian administrative law.
But these are nitpicks, especially about a decision that was not a majority decision. I hope similar considerations arise in Canada in the future, where we have seen seemingly inconsistent statements from our Supreme Court, as Professor Newman has noted so well in recent years.